Plaintiff 1 (Law Firm Barun, Attorneys Lee Young-hee et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Han-tae, Attorneys Jeon Tae-tae et al., Counsel for the defendant-appellant)

December 27, 2005

Chuncheon District Court Decision 2002Ra15715 Delivered on January 8, 2004

1. The judgment below is modified as follows.

A. The defendant shall be the plaintiff.

(1) The provisional registration of the right to claim the transfer of ownership made on March 31, 1987 with respect to land No. 1, 2, and 3 listed in the list of real property in attached Table 1, and the transfer of ownership made on March 10, 1998 with the above court No. 8732;

(2) The provisional registration of the right to claim transfer of ownership made on March 31, 1987 by the above court No. 6586 of March 31, 1987, and the registration of the transfer of ownership made on November 15, 1997 by the court No. 36646 of November 15, 1997

Each cancellation registration procedure shall be implemented.

B. The plaintiff's remaining claims are dismissed.

2. The total cost of a lawsuit shall be three minutes, which shall be borne by the plaintiff, and the remainder by the defendant.

The judgment of the court below is revoked. The judgment of the court below as to the land stated in the real estate list No. 2, and the defendant, as to the land stated in the attached Table No. 2, the judgment of the court below, and the decision that the plaintiff shall obtain provisional registration of the right to claim ownership transfer, which was made on October 20, 1987, and the procedure for cancellation of each registration of ownership transfer registration, which was made on March 10, 1998 by the above court No. 8731 (the plaintiff sought cancellation of the registration with payment of KRW 20,000,000, while seeking cancellation of the registration with due repayment of KRW 20,000).

1. Facts of recognition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the pleading in the entries of Gap evidence 1-1-6, Gap evidence 2-1-5, and Gap evidence 5.

A. On March 27, 1987, the Defendant entered into a pre-sale agreement with the Plaintiff on the purchase price of KRW 20,000 on the following day even if the Defendant did not separately express his/her intention to complete the pre-sale agreement, and subsequently, entered into the said pre-sale agreement on March 30, 1987 with the Plaintiff on March 27, 1987: (a) 954m2, a river of 1293m2, a river of 954m2, a river of 955m2, a river of 953m2, and the attached real estate list of 1m20,000; and (b) on March 31, 1987, the Defendant concluded that the pre-sale agreement is completed on the following day after the completion of the pre-sale agreement, and completed the registration of transfer of ownership under the Defendant’s name on each of the above lands as the receipt of No. 6586, Mar. 3

B. On October 19, 1987, the Defendant entered into a pre-sale agreement with the Plaintiff to purchase the land listed in the attached Table 2’s real estate purchase price of KRW 2,00,000,00. Upon the expiration of December 30, 1988, the Defendant agreed that even if the Defendant did not separately express his/her intention to complete the pre-sale agreement, the above pre-sale agreement shall be completed on the following day after the expiration of the above period, and the registration of the Defendant’s right to claim the transfer of ownership on the said land was completed as the receipt No. 19904 of October 20, 197.

C. On July 25, 1997, the Defendant filed a lawsuit against the Plaintiff seeking the implementation of the procedure for the registration of ownership transfer based on each of the above provisional registrations, and won the judgment in favor of the Plaintiff, and completed the registration of ownership transfer based on the above judgment (name omitted), 954 river No. 463m2, 955 river No. 453m2, and No. 3646 of the above court on November 15, 1997 as to the land indicated in the real estate list No. 36646 of the above court on November 26, 1997. On November 26, 1997, the Defendant continued to obtain the registration of ownership transfer from the above court No. 97Da8317, which had been erroneously indicated by the date of receipt of the registration, and failed to obtain the registration of ownership transfer based on the above judgment No. 2097No. 27897, Nov. 27, 207 and each of the above real estate No. 2007.

D. Meanwhile, on January 30, 1987, prior to the filing of each of the above lawsuits, the Plaintiff was detained as a non-prosecution and was detained in the Seoul detention center. On August 28, 1998, the term of punishment has expired and released. Each of the above litigation procedures was conducted when both the litigation documents, such as a copy of the complaint, and the original copy of the judgment, were served to the Gangnam-gu Seoul Metropolitan Government (the third omitted omitted) where the Plaintiff was detained.

E. After that, the portion of the Plaintiff’s share became 1,2, and 3 land indicated in the real estate list No. 1, 2, and 961-1, and 714 square meters indicated in the attached Table No. 1, 2, and 3, and the part of the Plaintiff’s share became 463 square meters in a river of 954 and 453 square meters in a river of 95553 square meters in a same Ri, respectively, after a land category change.

2. The assertion and judgment

A. First, the plaintiff asserts that each of the above provisional registrations is not aimed at preserving the right to claim ownership transfer registration based on the trade reservation, but based on a title trust agreement between the plaintiff and the defendant, and that the title trust agreement is cancelled by the service of the preparatory documents dated June 14, 2005 of this case and sought cancellation of each of the above provisional registrations and the transfer registration. Thus, the above assertion is insufficient to acknowledge the title trust facts only by the testimony of the witness box box, 2, 3, 7-1 through 6, 8, 9-1, 2, 3, 26, 29, 37, 37, 39-1 through 7, and 39-1 through 7 of the evidence No. 1, 26, 29, 37, and 39-7, and the testimony of each of the above provisional registrations and the transfer registration of ownership. Therefore, the above assertion is without merit.

B. Next, the plaintiff, even if each of the above provisional registrations was not based on a title trust agreement, has been completed to secure the plaintiff's monetary obligation of KRW 22,00,000 against the defendant, so the defendant must go through liquidation procedures such as notifying the plaintiff that there is no liquidation amount or liquidation amount in accordance with the provisional registration security law. However, since the defendant did not perform this procedure and completed the registration procedure for transfer of ownership to each of the land of this case, each of the above transfer registrations must be cancelled as an invalid registration that is not inconsistent with the substantive relations in violation of the above law. In addition, the Provisional Registration Security Act applies only if the provisional registration under the pre-contract for transfer of property rights exceeds the total amount of the loan and the interest attached thereto, and there is no evidence to acknowledge that the pre-sale price at the time of the above sale of each of the land of this case exceeds the secured amount. Thus, the above assertion is without merit.

C. Finally, the plaintiff asserts that each of the above provisional registrations is a provisional registration made to secure the plaintiff's monetary obligation against the defendant, and that the security obligation should be cancelled since the statute of limitations has expired. However, as seen earlier, the defendant filed a lawsuit against the plaintiff for ownership transfer registration based on the above provisional registration and received a favorable judgment in favor of the plaintiff, and completed the registration of ownership transfer based on it, each of the above provisional registrations should be cancelled together with the above provisional registration.

In full view of the whole purport of the pleading, Gap evidence 1-1 to 6, Gap evidence 2-1 to 5, Gap evidence 5, Gap evidence 23, 24, 25, 29, Gap evidence 30-1, 2, 3, Gap evidence 37, 38, Eul evidence 39-1 to 7, Eul evidence 10-1, 2, and Eul evidence 11, the plaintiff was liable against the defendant for damages related to the sale of commercial buildings (However, the plaintiff asserted that the cause of the debt is compensation related to the sale of commercial buildings, the defendant asserted that the above provisional registration was made to the defendant in order to secure the above debt, and if the above amount is not paid to the defendant by the due date, the plaintiff's motive or circumstance for the sale of the above amount can be acknowledged as the security deposit agreement with the plaintiff and the defendant's each of the above facts.

However, on July 25, 1997, after ten years from June 30, 1987, which was the due date for repayment of the secured provisional registration for each land listed in the attached real estate list No. 1, the Defendant filed a lawsuit against the Plaintiff on July 25, 1997 against the Plaintiff for the registration of ownership transfer based on the above provisional registration. Accordingly, the provisional registration based on the purchase and sale promise as of March 27, 1987 was extinguished by the prescription prior to the filing of the lawsuit. Thus, the Defendant is obliged to implement the procedure for the cancellation registration of provisional registration completed for each land listed in the attached list No. 1.1.

In addition, according to the facts found above, the procedure for principal registration of transfer of ownership on each of the above lands was conducted by this court's 97Da8317 and 97DaDa13753. However, since the original copy of each of the above judgments was delivered illegally to the plaintiff's former domicile, not the head of the Seoul detention center, where the plaintiff was in the vicinity of the two districts, each of the above judgments became final and conclusive. Therefore, the transfer of ownership registration completed on the basis of the judgment that was not finalized should be cancelled by the cause invalidation unless there are special circumstances that make it possible for the plaintiff to be consistent with the substantive legal relationship. Therefore, the defendant is liable for the plaintiff to implement the procedure for registration of cancellation of transfer of ownership registration

However, it is clear that the period for repayment of the secured obligation for which the provisional registration for security was made on the land specified in the attached Table 2 real estate list has not expired at the time of the institution of the above lawsuit since it was made on December 30, 1988. Thus, the provisional registration of the defendant and the transfer of ownership are valid.

Therefore, the plaintiff's assertion is justified only for each land listed in the attached Table 1's real estate list, and the remainder is without merit.

3. Conclusion

Therefore, the defendant has the obligation to register the provisional registration of the right to claim ownership transfer, which was made on March 31, 1987 with respect to the land attached Table 1, 2, and 3 in the real estate list No. 1 to the plaintiff, and the defendant has the obligation to register the provisional registration of the right to claim ownership transfer, which was made on March 31, 1987, and the provisional registration of the right to claim ownership transfer, which was made on March 10, 1998 by the above court No. 8732, which was received on March 10, 198, and to register the right to claim ownership transfer, which was made on March 31, 1987 by the above court No. 6586, and the procedure for the registration of cancellation of the right to claim ownership transfer, which was made on November 15, 1997, shall be accepted within the above recognized limit and dismissed as there is no reason. The judgment of the court below is partially unfair, thereby accepting the plaintiff's appeal partially.

[Attachment Omission of List of Real Estate]

Judges Kim Nam-tae (Presiding Judge)